Memorandum
U.S. Department of Transportation
Federal Highway Administration

The following guidance is intended to address issues related to implementation of the ESA in the Federal-aid highway program. These issues are:

1. the interaction of the National Environmental Policy Act (NEPA) environmental analysis and ESA Section 7 consultation process,

2. the authority of FHWA divisions to delegate and manage the ESA Section 7 process, and

3. environmental analysis of candidate species for ESA listing.

Interaction Between NEPA and ESA

The NEPA and the ESA Section 7 processes interact in the early phases of the environmental analysis of a project. The NEPA drives the evaluation of biological resources in the project area concurrent and interdependent with the ESA Section 7 consultation process. Evaluation of impacts to species federally-listed as endangered is required for all levels of NEPA documentation, and the detail of analysis is potentially the same, dependent on the scope of the project, ecological importance and distribution of the affected species, and intensity of potential impacts of the project. A CE determination through NEPA does not exempt any project from sufficient environmental analysis to determine the likely presence and potential impacts of the project on listed species, unless a programmatic determination to that effect has been made at the local level with the concurrence of the Fish and Wildlife Service/National Marine Fisheries Service (Services). A potential impact on species or habitat protected by the ESA does not automatically require elevation of the NEPA documentation (CE, EA, EIS). This depends on the importance of the resources and the scope of the impacts.

The minimal biological evaluation (BE) under Section 7 for any Federal-aid project not addressed programmatically, is a request to the Services for information on the presence of listed or proposed species or critical habitat in the project vicinity. If the Services respond that protected species or habitat are known not to occur in the action area, the environmental analysis with respect to the ESA is complete and the FHWA concurs in writing with a no effect determination by the State DOT. The determination of no effect should be included in the NEPA documentation, including CEs. A "likely to effect determination" is appropriate when the action area of the proposed project includes areas known to be inhabited, or known to be potentially inhabited, by one or more listed species, or the action area includes designated critical habitat.

If the Services respond that protected species or habitat are known or likely to occur in the project action area, the State DOT has the option of entering informal consultation or directly requesting formal consultation. The process of informal consultation is optional and is described in 50 CFR § 402, Interagency Cooperation-Endangered Species Act of 1973, as Amended, Subpart B, Consultation Procedures. The endangered species analysis should be appropriate to the scope of the project. It may be prepared as a BE or a BA in the case of an EIS. A distinction is made between the process for submitting a BA (which occurs in accordance with Part 50 CFR § 402.12 for EIS projects) and the preparation of a BE (which is developed during informal consultation and may be used to initiate formal consultation for EAs and CEs).

In a BE the groundwork is established for a determination of "may affect, not likely to adversely affect" or "may affect, likely to adversely affect", which is initially made by the State DOT. An analysis of the action area, determination of distribution and occurrence of contributing habitat elements, biological characteristics of the species, and potential impacts of the project (including noise, disturbance, and other factors which could affect the behavior, reproduction, and general ecological functions of the species) should be discussed. The BE should include an "affect" determination for listed species or habitat. These conclusions should be supported by the information in the BE, including a discussion of potential mechanisms of impact on the species or habitat.

Sufficient information must be provided to the Services to make a "not likely to adversely effect" or "likely to adversely effect" determination in informal consultation, or a jeopardy/adverse modification or non-jeopardy/no adverse modification determination in formal consultation. Because the FHWA does not require elevation of NEPA documentation when a project is determined as "likely to adversely affect" a listed or proposed species, the preparation of a BE and formal consultation can be required for CEs and EAs. BEs submitted for formal consultation should contain the same biological information as a BA.

When a programmatic determination on classes of actions which are considered "not likely to adversely affect" listed or proposed species or critical habitat has been concurred in by the FHWA and the Services in writing, no further evaluation is required on these projects. Actions of this nature might include signing, striping, overlays, minor reconstruction, and similar activities which experience has shown to have insignificant, discountable, or beneficial effects on listed species.

Consultation on Species or Critical Habitat Listed Under the Endangered Species Act - Delegation Authority

50 CFR Section 402.08, Designation of Non-Federal Representative, allows Federal agencies to delegate informal consultation and preparation of BEs and BAs to a non-Federal representative. The FHWA (by letter to the Services dated August 7, 1986) did this, delegating informal consultation and preparation of BEs and biological assessments in the Federal-aid highway program to State DOTs. The ESA and 50 CFR § 402.08 require that the FHWA furnish guidance and supervision of the consultation process, concur in no effect determinations, and independently review and evaluate the scope and content of BAs. BEs, species lists, habitat descriptions, and other documentation prepared to assess the effects of both major and non-major Federal actions on listed and proposed species and habitats, both programmatic or individual, may be submitted by the State DOT directly to the Services' field office under the delegation authority, at the discretion of the FHWA division office. The FHWA division offices retain discretionary authority to review and participate in any stage of the ESA consultation process on a Federal-aid highway project, from NEPA evaluation of resources through formal consultation.

The FHWA policy encourages the State DOTs to be proactive in informal consultation, including modification of the proposed project where necessary to avoid adverse effects. If, during informal consultation, the State DOT obtains written concurrence from the Services that the action as proposed or modified is not likely to adversely affect listed or proposed species, or listed or proposed habitat, Section 7 requirements have been met. The authority of the FHWA to delegate informal consultation and preparation of BEs and BAs to the State DOTs is not discretionary on the part of the Services.

The ultimate responsibility for compliance with all Section 7 requirements in regard to federally-funded highway projects remains with the FHWA. 50 CFR § 402 does not provide for delegation of formal consultation to a non-Federal representative. All formal consultation procedures with the Services must be carried out by the FHWA division office.

BAs include information concerning all species listed and proposed for listing under the ESA, designated and proposed critical habitat that may be present in the action area of the project, and the evaluation of potential effects of the project on such species and habitat. This information is described in detail in 50 CFR 402.12(f). BAs are prepared for major construction activities, typically EIS projects, and shall be independently reviewed by the FHWA division office, before being submitted to the Services' field office. This review must be carried out in a timely way to facilitate completion of the consultation requirements.

Re-initiation of consultation may be requested by the State DOT, the FHWA, or the Services after initial consultation is completed as made necessary by changes in the scope or design of the project, discovery of the presence of previously unknown listed species or critical habitat, or the listing of new species. Re-initiation of informal consultation can be done by the FHWA or delegated to the State DOT, at the discretion of the FHWA division. Formal consultation must be re-initiated by the FHWA.

Conference Process for Proposed Species

Species and critical habitats proposed in the Federal Register for listing are subject to the conferencing process established in 50 CFR § 402.10, Conference on Proposed Species or Proposed Critical Habitat. Conference is a process of early interagency coordination, similar to consultation, involving informal or formal discussions between a Federal agency and the Services pursuant to Section 7(a)(4) of the ESA regarding the potential impact of a project or action on proposed species or proposed critical habitat. The conference procedure is designed to help Federal agencies identify and resolve potential conflicts between Federal projects and species conservation by developing recommendations to minimize or avoid adverse effects on proposed species or proposed critical habitat.

Informal conference on proposed species or critical habitat may be carried out by the State DOTs. If a determination is made that a proposed Federal-aid highway project is likely to jeopardize a species or destroy, or adversely affect, critical habitat proposed for listing under the ESA authorities, a formal conference is required and must be initiated by the FHWA. During the conference process, the Services will make advisory recommendations on ways to avoid or minimize adverse effects. If agreed to by the FHWA division office and the Services' field office, the conference can be carried out under § 402.14, Formal Consultation. If those procedures are followed, and the species or critical habitat is listed prior to completion of the project, the Services have the option (in the absence of significant changes in the project or significant, new information on the species) of adopting the conference opinion as the biological opinion for the project. An incidental take statement issued with a conference opinion does not become effective unless the Services adopts the conference opinion as the biological opinion.

Candidate Species

Candidate species are those species for which the Services have on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list, but for which issuance of the proposed rule is currently precluded by one or more of several conditions. These species were formerly called Category 1 candidates. They are now referred to simply as candidate species. The Services emphasize that these candidate taxa are not proposed for listing, but that development and publication of proposed rules for listing of candidate species is anticipated. Species formerly classified as Category 2 and Category 3 candidate species are no longer classified as candidates. The Services maintain data on these species when feasible.

Categorization of a species as a candidate is strong evidence that the species is of special concern, and subject to the full protection of the listing process, if not at present, probably in the future. There are no absolute guidelines on how long it will take a species to go from the candidate list, to being proposed, to a final rule on listing. Impacts on candidate species should be addressed in Federal-aid highway project environmental documents. NEPA documents should identify candidate species as such, and describe any planned conservation measures. The Services encourage Federal agencies to consider implementing conservation measures for candidate species, as these measures may avoid the future necessity of listing. Proactive partnering with the Services to conserve candidate species might reduce future delays on Section 7 processes and/or result in future cost savings if listing can be avoided. However, candidate status does not provide species protection under the listing process, and neither consultation nor conference, formal or informal, is required on Federal-aid highway projects for candidate species under the ESA Section 7 requirements. Any interagency coordination on these species with respect to Section 7 of the ESA by the FHWA or the State DOT is discretionary. However, they have the same status as any other non-regulated resource issue under NEPA.

Emergency Listing

The Services have the option, when they believe it is warranted, of initiating emergency listing procedures, which can result in a species being listed in less than 90 days. Emergency listing lasts 240 days, during which time the Services can usually complete final listing.

cc: Directors of Field Services